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Ll1 slides extent of ownership and enjoyment of land part 2 Right to underground land, below the surface of the land Right to support of land in its natural state
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EXTENT OF OWNERSHIP AND ENJOYMENT OF LAND (PART 2)
Areej Torla [email protected]
RIGHT BELOW THE SURFACE
NLC
Section 44 (1)(a): “Subject to the provisions of this Act” “any other written law” “exclusive use and enjoyment of “ “so much of the land below that surface” “as is reasonably necessary”
Trespass to underground land
Bulli Coal Mining v Osborne The Ds mined from their land through to the P's
land. This was held to be trespass to the subsoil.
Edwards v Lee’s Administrator A trespass is committed where an adjoining land
owner by means of access situated on his land, gains entry to a cave located beneath the surface of the owner’s land.
Terra Damansara Sdn Bhd v Nandex Development [2006] D was undertaking a construction project on
its land and had inserted ground anchors that encroached beneath the surface of the P’s land without P’s consent.
D claimed that he honesty believed that the adjoining land was unoccupied and unalienated.
Court: Trespass to land is actionable per se without any
proof of damage and liability is strict. It is not the law that a man cannot be a trespasser unless he knows he is one. If the entry is intentional, it is actionable even though that entry was made under a mistake or D honestly believed that the land was his own or, like the present case, the land was unoccupied and unalienated or that D believed that he had a right of entry on the land.
D had caused to be inserted ground anchors into the P's land and that constituted trespass. The trespass will last so long as the ground anchors are inserted into the P's land. Any entry beneath the surface of the P's land, at whatever depth, constitutes an actionable trespass.
Restrictions: Section 44 (1)(a)
“Subject to the provisions of this Act” “any other written law” “exclusive use and enjoyment of “ “so much of the land below that surface” “as is reasonably necessary”
“Subject to the provisions of this Act” Section 45(2)(a): A landowner may not use
and extract metals and minerals from his land.
Section 45(2)(b): A landowner may not remove beyond the boundaries of the land any rock material or forest produce.
Section 92 B: The State Authority may specify the depth up
to which the land below the surface of alienated land may be used.
Underground land below the specified depth is deemed State land.
(Note: Section 92C: Underground land below the surface of State land can be alienated, with a depth specified.)
Section 92D: A proprietor may apply for the whole or a part
of the underground land to be used for a purpose which is independent and unrelated to the lawful use to which the surface of the land is being put.
“any other written law”
The National Heritage Act 2005 “Antiquity” (see Section 2) Section 47: The person who finds the antiquity
must immediately notify the Commissioner of National Heritage, authorised officer or the DO of the district where the object was discovered and deliver such object to any of them.
Contravention of this Act? offence.
Section 48, National Heritage Act: The antiquities shall be the absolute property
of the Federal Government, provided that where the object is discovered on alienated land, compensation may be paid to the owner of the land.
(see also “treasure troves”)
RIGHT OF SUPPORT
NLC
Section 44 (1)(b): “Subject to the provisions of this Act” “any other written law” “the right to the support of the land” “in its natural state”
A landowner is entitled to have his land physically supported by the adjacent land.
Provided that his land is still in its natural state.
Thus, the right is a negative right requiring the owner of the adjacent land to refrain from withdrawing that support.
The owner of the adjacent land cannot withdraw the natural support that his land gives to his neighbour’s land.
Dalton v Angus
Lord Selbourne: “In the natural state of land, one part of it
receives support from another, upper from lower strata, and soil from adjacent soil. This support is natural, and is necessary, as long as
the status quo of the land is maintained”
Madam Chah Siam v Chop Choy Kong Kongsi P occupied a land under TOL used for rearing
fish. There was a large pond (an old mine filled with
water) an another smaller pond. D occupied the adjoining land, did mining
operations until he almost reached the boundary of the bank of the adjoining fish pond.
The bank collapsed, and water from the pond poured into the mine.
Court: The land in its natural state had an absolute
right of support from the adjoining lands. “natural state”: unburdened with buildings and
unweakened by excavations. The pond is simply an excavation caused by
mining which has filled up with water. The land in its excavated state is not entitled to
lateral support.
Guan Soon Tin Mining
The appellants were the owners of a mining land.
The land was used for mining by the appellant’s predecessors, long before the appellants occupied the land.
Court allowed the appeal. For an action for damage caused as a result of
the withdrawal of support, it is necessary to prove both that the withdrawal was caused by the act of the person against whom the action was brought.
Departure from Dalton v Angus ???In Singapore… Xpress Print Pte Ltd v Monocraft Pte Ltd & Anor
[2000] 3 SLR 545, Singapore ‘s Court of Appeal The court held that the right of support enjoyed by a
neighbouring landowner extended beyond the land in its natural state to the buildings erected thereon.
“In the event, we are of the view that the principle in question operates to give a landowner a right of support in respect of his buildings by neighbouring lands from the time such buildings are erected”